Health Ombudsman v Kennedy - [2019] QCAT 319

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Health Ombudsman v Kennedy [2019] QCAT 319

PARTIES: HEALTH OMBUDSMAN

(applicant)

v

MARIANNE RUTH KENNEDY

(respondent)

APPLICATION NO/S:

OCR078-18

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

16 October 2019

DATE OF DECISION:

16 October 2019

DATE OF REASONS:

7 November 2019

HEARD AT:

Brisbane

DECISION OF:

Judge Allen QC, Deputy President

Assisted by:
Ms H Barker
Ms M Barnett
Mr N Muller

ORDERS:
1. Pursuant to section 107(2)(b)(iii) of the Health Ombudsman Act 2013 (Qld), the Tribunal decides that the respondent has behaved in a way that constitutes professional misconduct;

2. Pursuant to section 107(3)(a) of the Health Ombudsman Act 2013 (Qld), the respondent is reprimanded;

3. Pursuant to s 62(2)(a)(ii) of the Health Ombudsman Act 2013 (Qld), the decision of the Health Ombudsman to take immediate registration action on 4 March 2015 is set aside;

4. The respondent is to file any material she wishes to rely on in relation to the issue of costs within 14 days of this decision; and

5. The applicant is to file any material he wishes to rely on in relation to the issue of costs within 14 days of receipt of the respondent’s material.

CATCHWORDS:
PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – NURSES – DISCIPLINARY PROCEEDINGS – SANCTION – where the respondent is a registered nurse – where the referral charged, and the respondent admitted, a range of misconduct in relation to misappropriation of Schedule 8 and Schedule 4 drugs, contravention of a condition, and a failure to notify the Board of a relevant event – where the respondent disputed a charge of placing a patient at risk of harm – where the applicant was unsuccessful in proving the charge of placing a patient at risk of harm to the requisite standard of proof – where the parties agreed as to the characterisation of the admitted conduct – where the parties agreed as to the imposition of a reprimand – where the applicant submitted that the Tribunal ought to cancel the respondent’s registration and disqualify the respondent from applying for registration for up to six months – where the respondent submitted that the cancellation and disqualification was unnecessary in circumstances where the respondent had been subject to a de facto suspension for 4 ½ years, she had taken significant steps towards rehabilitation and there was no evidence she posed a present risk to the safety of the public – whether the Tribunal ought to cancel registration and order a period of disqualification

Health Ombudsman Act 2013 (Qld), s 103, s 104, s 107
Health Practitioner Regulation National Law (Qld), s 5, s 130

Briginshaw v Briginshaw (1938) 60 CLR 336
Craig v Medical Board of South Australia (2001) 79 SASR 545
Healthcare Complaints Commissioner v Flynn [2009] NSWNMT 1
Healthcare Complaints Commission v Turner [2016] NSWCATOD 163
Health Ombudsman v Riek [2017] QCAT 173
MedicalBoard of Australia v Davis [2018] QCAT 215
Medical Board of Australia v Holding [2014] QCAT 632
Nursing and Midwifery…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2019] QCAT 319
Decision Date: 16 October 2019

CaseChat Overview and Summary

The Tribunal in this case was required to consider the misconduct of a registered nurse, who had admitted to misappropriation of drugs and other breaches of professional conduct. The Health Ombudsman sought a range of sanctions, including the cancellation of the respondent's registration and a period of disqualification. The respondent contested the more severe sanctions, arguing that her previous suspension and efforts towards rehabilitation made them unnecessary. The central legal issue was whether the Tribunal should impose the more severe sanctions of cancellation and disqualification, given the respondent's previous suspension and her efforts towards rehabilitation.

The Tribunal considered the respondent's previous suspension, her admissions, and her efforts towards rehabilitation. The Tribunal noted that the respondent had been subject to a de facto suspension for 4 ½ years, had taken significant steps towards rehabilitation, and there was no evidence she posed a present risk to the safety of the public. The Tribunal concluded that the less severe sanction of a reprimand was appropriate. The Tribunal set aside the decision to take immediate registration action, which had resulted in the respondent's suspension, and ordered the respondent to file material in relation to costs within 14 days.

In summary, the Tribunal found that the respondent's conduct constituted professional misconduct but decided against the more severe sanctions of cancellation and disqualification. Instead, the Tribunal imposed a reprimand and set aside the decision to take immediate registration action. The Tribunal also directed the parties to file material in relation to costs within a specified timeframe.

Orders

Orders of the court

1. Pursuant to section 107(2)(b)(iii) of the Health Ombudsman Act 2013 (Qld), the Tribunal decides that the respondent has behaved in a way that constitutes professional misconduct;

2. Pursuant to section 107(3)(a) of the Health Ombudsman Act 2013 (Qld), the respondent is reprimanded;

3. Pursuant to s 62(2)(a)(ii) of the Health Ombudsman Act 2013 (Qld), the decision of the Health Ombudsman to take immediate registration action on 4 March 2015 is set aside;

4. The respondent is to file any material she wishes to rely on in relation to the issue of costs within 14 days of this decision; and

5. The applicant is to file any material he wishes to rely on in relation to the issue of costs within 14 days of receipt of the respondent’s material.

Background

Background to the litigation

After a hearing on 16 October 2019, the Tribunal made the orders above. These are the reasons of the Tribunal for making those orders. The respondent’s background The respondent was born on [redacted], is aged 52 years, and was aged 47 to 48 years at the time of the conduct the subject of the referral. The respondent was first registered as a registered nurse and midwife on 5 February 1988. She subsequently obtained qualifications in advanced neonatal nursing and a Bachelor of Nursing degree. The respondent’s relevant employment history is as follows:(a)25.08.2008–14.02.2014 - employed by the Mater Hospital as a registered nurse;(b)24.07.2014–18.12.2014 - employed by a nursing agency as a registered nurse working at the following locations:(i) 21.19.2014–18.12.2014 - at the Gold Coast University Hospital;(ii) 27.10.2014–4.11.2014 - at the Sunnybank Private Hospital;(c)27.12.2014–16.01.2015 - employed as a registered nurse by the Greenslopes Day Surgery. The Australian Health Practitioner Regulation Agency (“AHPRA”) previously dealt with three notifications relating to the respondent. On 8 January 2014, the Director of Nursing and Midwifery Services of the Mater Hospital notified AHPRA that the respondent had been stood down, effective from 4 January 2014, pending an investigation regarding medications. On 29 January 2014, AHPRA received a notification from the respondent that she was on leave with pay for inappropriate conduct regarding schedule 8 drugs. The respondent admitted taking schedule 8 drugs (two ampoules of Fentanyl) and using them for personal use. On 18 February 2014, the Nursing Director of the Mater Hospital notified AHPRA of an incident concerning an ampoule of Fentanyl discovered in the respondent’s work locker. On 26 March 2014, the Queensland Notifications Committee of the Nursing and Midwifery Board of Australia (“the Committee”) required the respondent to undergo a health assessment in relation to two of the three notifications. On 23 April 2014, the Committee decided to take no further action in relation to the third notification as the subject matter of the notification had already been dealt with adequately by the Nursing and Midwifery Board of Australia (“the Board”) in respect of the other two notifications. On 30 April 2014, the respondent appeared before the Brisbane Magistrates Court and pleaded guilty to a charge of stealing as a clerk or servant. The offence related to the respondent’s conduct on 29 December 2013 in stealing five 500 microgram ampules of Fentanyl from the drug safe in the children’s recovery ward of the Mater Hospital when the respondent was not on duty. The respondent was ordered to pay a fine of $1,500 with no conviction recorded. Prior to the criminal convictions the subject of these disciplinary proceedings, this plea of guilty to a charge of stealing as a clerk or servant was the respondent’s only prior criminal history. On 2 May 2014, the respondent attended a health assessment with Dr Frank New, psychiatrist. Dr New subsequently provided a health assessment report diagnosing the respondent with a substance abuse disorder (namely Fentanyl). On 18 December 2014, the Committee decided that the respondent had an impairment and decided to impose conditions on the respondent’s registration which included a prohibition on the respondent dealing with schedule 8 drugs and opioids and requirements that she attend for urine drug screening and provide a specimen of hair for drug analysis as required by the Board.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Health Ombudsman v Kennedy [2019] QCAT 319
PARTIES:	HEALTH OMBUDSMAN
(applicant)
v
MARIANNE RUTH KENNEDY
(respondent)
APPLICATION NO/S:	OCR078-18
MATTER TYPE:	Occupational regulation matters
DELIVERED ON:	16 October 2019
DATE OF DECISION:	16 October 2019
DATE OF REASONS:	7 November 2019
HEARD AT:	Brisbane
DECISION OF:	Judge Allen QC, Deputy President Assisted by: Ms H Barker Ms M Barnett Mr N Muller
ORDERS:	1. Pursuant to section 107(2)(b)(iii) of the Health Ombudsman Act 2013 (Qld), the Tribunal decides that the respondent has behaved in a way that constitutes professional misconduct; 2. Pursuant to section 107(3)(a) of the Health Ombudsman Act 2013 (Qld), the respondent is reprimanded; 3. Pursuant to s 62(2)(a)(ii) of the Health Ombudsman Act 2013 (Qld), the decision of the Health Ombudsman to take immediate registration action on 4 March 2015 is set aside; 4. The respondent is to file any material she wishes to rely on in relation to the issue of costs within 14 days of this decision; and 5. The applicant is to file any material he wishes to rely on in relation to the issue of costs within 14 days of receipt of the respondent’s material.
CATCHWORDS:	PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – NURSES – DISCIPLINARY PROCEEDINGS – SANCTION – where the respondent is a registered nurse – where the referral charged, and the respondent admitted, a range of misconduct in relation to misappropriation of Schedule 8 and Schedule 4 drugs, contravention of a condition, and a failure to notify the Board of a relevant event – where the respondent disputed a charge of placing a patient at risk of harm – where the applicant was unsuccessful in proving the charge of placing a patient at risk of harm to the requisite standard of proof – where the parties agreed as to the characterisation of the admitted conduct – where the parties agreed as to the imposition of a reprimand – where the applicant submitted that the Tribunal ought to cancel the respondent’s registration and disqualify the respondent from applying for registration for up to six months – where the respondent submitted that the cancellation and disqualification was unnecessary in circumstances where the respondent had been subject to a de facto suspension for 4 ½ years, she had taken significant steps towards rehabilitation and there was no evidence she posed a present risk to the safety of the public – whether the Tribunal ought to cancel registration and order a period of disqualification Health Ombudsman Act 2013 (Qld), s 103, s 104, s 107 Health Practitioner Regulation National Law (Qld), s 5, s 130 Briginshaw v Briginshaw (1938) 60 CLR 336 Craig v Medical Board of South Australia (2001) 79 SASR 545 Healthcare Complaints Commissioner v Flynn [2009] NSWNMT 1 Healthcare Complaints Commission v Turner [2016] NSWCATOD 163 Health Ombudsman v Riek [2017] QCAT 173 MedicalBoard of Australia v Davis [2018] QCAT 215 Medical Board of Australia v Holding [2014] QCAT 632 Nursing and Midwifery…